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2004 DIGILAW 1017 (MP)

Sadri Singh v. Ashok Kumar Gupta

2004-12-15

A.K.GOHIL, S.S.JHA

body2004
JUDGMENT This appeal is by the claimants. Claimants suffered an accident on 22.10.1998 at about 9 in the night and after the accident, claim petition could not be filed within time and it was filed on 29.3.1993 and the claim petition was barred by 4-1/2 years. Application under section 5 of the Limitation Act was fifed by the claimants and this application was opposed. Claims Tribunal held that there was no sufficient cause in condoning delay and dismissed the claim petition as barred by limitation and awarded Rs. 25,000/- towards no fault liability. It is contended by the claimant that after accident in the month of November, 1988, papers were handed over to Shri Ramjeevan Maheshwari, Advocate, of Morena to file the claim petition, but after securing their signatures, claim petition was not filed in the Court and when they went to enquire regarding the date, then they were informed by the Advocate that the petition has been filed and notices have been issued. Claimants continuously contacted the counsel and they were intimated about date of hearing and they have paid regular legal remuneration to the counsel but said counsel has not filed the application. Various dates have been mentioned, on which claimants met their counsel in the Court. Then in January, 1993, counsel informed them that there case shall be settled in the Lok Adalat on 7.2.1993. Counsel on 7.2.1993 informed them that since Insurance Company has refused to compromise, therefore matter could not be settled and case will proceed in the Court. When they insisted upon the counsel to intimate the date so that they can appear before the Court, then on 27.2.1982 he has written one letter on stamp paper that by March, 1993 compensation shall be paid to the claimant. The claimants then contacted their counsel in March 1993, again counsel said that some more time wi II be required and compensation shall be paid by him if they will not get compensation from the Court. On 10.3.1993 when the complainant again contacted their counsel, then the said counsel again did not give satisfactory reply. The claimants made a complaint in the Bar Association and requested Shri Sughar Singh Gurjar, Advocate, to enquire about the progress of their case from the Court and after enquiry Shri Gurjar told them that no claim petition has been filed by Shri Maheshwari, Advocate, and they were given false assurance. The claimants made a complaint in the Bar Association and requested Shri Sughar Singh Gurjar, Advocate, to enquire about the progress of their case from the Court and after enquiry Shri Gurjar told them that no claim petition has been filed by Shri Maheshwari, Advocate, and they were given false assurance. On account of fraud played by Shri Maheshwari, Advocate, the claimants could not file the claim petition within time though they were under bona fide belief, they had full faith in the counsel. After engaging Shri Gurjar, Advocate, he secured papers from Shri Maheshwari, Advocate, and filed claim petition. Affidavit was also filed. Stamp paper written by Shri Maheshwari was admitted by Shri Maheshwari, Advocate, and Shri Maheshwari has secured thumb impression of claimants on plain papers, which were filed in the Court. Application was opposed by the Insurance Company and Claims Tribunal without considering the facts of the case has refused to condon the delay. In our opinion, claims Tribunal erred in rejecting the application for condonation of delay. On account of misconduct of counsel engaged by the claimants, the claimants cannot be made to suffer. Therefore, we find that there is sufficient cause in not filing the application in time. Delay in filing the application is condoned and case is remitted back to the claims Tribunal for its decision on merits. Since the accident occurred under the Old Act, Tribunal erred in holding that it has no jurisdiction to condone delay under the new Act and the Claims Tribunal lost sight of the fact that the accident relates to Motor Vehicles Act of 1939 and he has decided the case considering the provisions of Motor Vehicles Act, 1988. Therefore, order passed by the Claims Tribunal is set aside. Copy of the orders be sent to the Bar Counsel for disciplinary action against the concerned Advocate of Morena, Shri Maheshwari. As regards interest on account of delay in the appeal is concerned, question of delay and payment of interest shall be considered by the Claims Tribunal, in the event compensation is awarded to the claimants. Question regarding payment of interest shall be raised by the Insurance Company, which shall be decided on merits. Parties shall appear before the Claims Tribunal on 1st February, 2005. Appeal is allowed. No costs.